Disturbing Criminal History Ordinance Being Considered in Baltimore

I follow proposed employment legislation in Maryland during our legislative session, which runs from January to April each year. More and more, the bills that are proposed use California statutes as models, which is troubling. Employers in our State certainly do not want Maryland to become the “California of the East!” More troubling still, in Baltimore City (which genuinely needs to attract more business) there currently is a piece of legislation pending before the City Council that would prevent employers from asking about an applicant’s criminal history until a conditional job offer is made, and thus is much more radical than typical “ban-the box” legislation enacted in a few states.

Some states prohibit “the box” (i.e. a question about criminal history) on an employment application but do permit criminal history questions to be asked of an applicant in a job interview. The stated rationale for this type of law is that it gives convicted criminals, who otherwise might be automatically disqualified from employment by an affirmative answer to the criminal history question, to get their foot in the door and potentially “wow” the employer during an interview. (While I understand the rationale, I actually don’t see the need for this type of law – the EEOC has repeatedly and aggressively stated that automatic disqualification policies are discriminatory against minorities. In my experience, most employers don’t consider an affirmative answer to automatically disqualify an applicant. They do take the circumstances of the conviction into account – what kind of conviction, how long ago it was, etc.)

The proposed ordinance, however, takes this even further – unreasonably so. It would permit employers to obtain criminal background information only after a job offer ismade (except for jobs where criminal background checks are required by law). This means that an employer would go through an entire recruitment process only to find out, after choosing a candidate, that the individual has an employment-disqualifying criminal record. That simply makes no sense. What a waste of time and recruiting resources!

In addition, the proposed ordinance prohibits employers from taking any action against an applicant or employee based on arrest. Sometimes employers want to put an employee on leave while certain charges are pending. This would affect an employer’s ability to do so.

This proposed ordinance is really troubling for employers. If you’re a Baltimore City employer, you may want to let your Council member know about your concerns!

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